United States Fourth Circuit Court of Appeals Adopts OCR's Title IX Gender Identity Interpretation for Transgender Students' Access to School Facilities

A majority panel of three judges in GG v Gloucester County School Board, U.S. Court of Appeals 4th Cir. Case No. 15-2056 (April 19, 2016), reversed a federal trial court's decision, endorsed the Office of Civil Rights' ("OCR") interpretation of Title IX regulations relating to gender identity, and ruled that a transgender student should have access to a school's restroom, locker room and shower facilities based on the student's gender identity rather than biological sex. One of the judges filed a dissent.

The case involved a high school student whose birth sex was female but who identified as male. The student had been diagnosed with the medical condition, Gender Dysphoria, and there was no dispute over the legitimacy of the student's transformation.

Initially, school officials allowed the transgender student to use the boy's restroom. However, after public complaints and objections, the school district's board of education enacted a policy that limited the use of male and female restroom and locker room facilities to the corresponding biological sex, and students with gender identity issues were to be provided an alternative private facility.

The student, with the aide of the American Civil Liberties Union, sued in federal court to enjoin enforcement of this board policy. Ruling in favor of the board, the federal court judge denied the student's request for a preliminary injunction to bar implementation of the board policy. The federal judge specifically rejected the OCR's January 7, 2015 letter which dictated that a school which elects to separate or treat students differently on the basis of sex must treat transgender students consistent with their gender identity with respect to restroom, locker room and shower facilities. The federal judge cited to a previous federal court case which likewise rejected the OCR's gender identity interpretation, Johnson v University of Pittsburgh, 97 F Supp 657 (W.D. PA 2015).

On appeal, the OCR filed an amicus curiae brief which factored prominently in the majority opinion's decision to reverse the trial court's ruling. The majority opinion emphasized that an agency's interpretation of its statutes and regulations is entitled to judicial deference. The court's analysis focused on whether the OCR's interpretation of regulation 34 CFR §106.33 should be given judicial deference. This regulation, which was promulgated in 1975 and adopted in 1980, implemented Title IX's provision allowing schools to separate toilet, locker room and shower facilities on the basis of sex.

The majority opinion concluded that this regulation was ambiguous. Although clearly a school can separate restroom, locker room and shower facilities on the basis of sex, it was unclear on how a person's sex is to be determined. The majority opinion concluded that the OCR's interpretation - that §106.33 reference to sex should be determined on the basis of gender identity - was not plainly erroneous or inconsistent with the text of the regulation. Consequently, the majority opinion ruled that the Agency's interpretation deserved judicial deference.

The majority opinion paid token acknowledgment to other non-transgender student's legitimate and important interests of bodily privacy with respect to nude bodies, genitalia and other private parts. However, the majority wrote that the privacy interests of non-transgender students did not necessarily undermine the deference that was owed to the OCR's interpretation of its regulations.

There was a strong and forceful dissent to the majority opinion. The dissent noted that the majority ruling was devoid of any legal authority save the January 7, 2015 OCR letter. The dissent found §106.33 to be unambiguous. The dissent protested the majority decision's disdain for the constitutionally protected privacy rights of non-transgendered students. The dissent wrote, "This holding completely tramples on all universally accepted protections of privacy and safety that are based on the anatomical differences between the sexes . . . . This unprecedented holding overrules custom, culture, and the very demands inherent in human nature for privacy and safety, which the separation of such facilities is designed to protect."

The Fourth Circuit's decision is a very significant legal pronouncement in Title IX transgender cases. It is the first United States appellate court decision to clearly vindicate the OCR's interpretation that transgender students can use school facilities based on their gender identity.

The majority opinion remanded the case back to the federal district court judge for further proceedings. There are two options for further appeal. The school district can file an en banc petition which asks all the judges of the Fourth Circuit Court of Appeals to rehear and decide the case, or it can file an appeal with the United States Supreme Court. However, since there are now only eight Justices, a tie decision by the United States Supreme Court will affirm the Fourth Circuit Court of Appeals decision. If you have any questions regarding this legal development, or regarding issues concerning transgender students, please contact your Clark Hill PLC education law attorney.